This chapter examines the status and rank of international law in the Japanese legal order and confirms that treaties and customary international law have the force of law and enable litigants to ...
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This chapter examines the status and rank of international law in the Japanese legal order and confirms that treaties and customary international law have the force of law and enable litigants to invoke international law in Japanese courts. How the Japanese national courts deal with arguments based on international law, and why international instruments are not always binding under international law, even though international law has the force of law in Japan, are also examined in the chapter. The enforcement of some human rights treaties are often thwarted when enforced in domestic law, so these can only be established as an objective that is to be achieved progressively. The chapter examines how the technique of indirect application of international law, mainly international human rights laws, can be effective even when an international law cannot be directly applied. It also deals with the evaluation of human rights situations in foreign countries with the motive to apply an external application of international human rights laws or for refusing to extradite a criminal to the country. The legal effects of acts of international organizations in domestic law are also analysed.Less

The Status of International Law in Japan

YUJI IWASAWA

Published in print: 1998-09-24

This chapter examines the status and rank of international law in the Japanese legal order and confirms that treaties and customary international law have the force of law and enable litigants to invoke international law in Japanese courts. How the Japanese national courts deal with arguments based on international law, and why international instruments are not always binding under international law, even though international law has the force of law in Japan, are also examined in the chapter. The enforcement of some human rights treaties are often thwarted when enforced in domestic law, so these can only be established as an objective that is to be achieved progressively. The chapter examines how the technique of indirect application of international law, mainly international human rights laws, can be effective even when an international law cannot be directly applied. It also deals with the evaluation of human rights situations in foreign countries with the motive to apply an external application of international human rights laws or for refusing to extradite a criminal to the country. The legal effects of acts of international organizations in domestic law are also analysed.

This chapter explores the dark side of love in three kinds of Japanese court cases: suicide, murder, and stalking. Characters in these ominous-sounding tales should not be expected to live happily ...
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This chapter explores the dark side of love in three kinds of Japanese court cases: suicide, murder, and stalking. Characters in these ominous-sounding tales should not be expected to live happily ever after, and they don't. But the depiction in the opinions of love as suffering extends beyond tragic endings to places in the narrative that need not be bleak: the judges' applications of laws and nuanced recitations of the facts that occurred before the tragedy. Judges' depictions of love even extend beyond the particular facts of the cases, as they discuss the facts against the backdrop of what they view as widely shared assumptions about love. The resulting narratives usually describe love as if it naturally could not be anything other than an overwhelming, disorienting force to which people unwittingly cede self-control. The chapter begins by examining the context for this dark side of love in Japan.Less

Love

Mark D. West

Published in print: 2011-03-03

This chapter explores the dark side of love in three kinds of Japanese court cases: suicide, murder, and stalking. Characters in these ominous-sounding tales should not be expected to live happily ever after, and they don't. But the depiction in the opinions of love as suffering extends beyond tragic endings to places in the narrative that need not be bleak: the judges' applications of laws and nuanced recitations of the facts that occurred before the tragedy. Judges' depictions of love even extend beyond the particular facts of the cases, as they discuss the facts against the backdrop of what they view as widely shared assumptions about love. The resulting narratives usually describe love as if it naturally could not be anything other than an overwhelming, disorienting force to which people unwittingly cede self-control. The chapter begins by examining the context for this dark side of love in Japan.

This chapter discusses the final observations made about the impact of international law on Japanese law. Conclusions are drawn with respect to the impact of international law on Japanese law and the ...
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This chapter discusses the final observations made about the impact of international law on Japanese law. Conclusions are drawn with respect to the impact of international law on Japanese law and the relationship between international law and Japanese law. Japanese courts are reluctant to deal with international law because of their unfamiliarity with this new branch of law, and this unfamiliarity and reluctance is illustrated in this chapter with many concrete examples. The chapter also discusses that Japanese law has significantly improved through the revision of laws, and even though direct invocation of international human rights law is unsuccessful before the courts, the laws are often eventually amended in the political process. It is also shown that international human rights adjudication has been less effective as a legal weapon for winning cases in the courts than it has a political means of giving legitimacy to movements to change Japanese laws.Less

Concluding Chapter

YUJI IWASAWA

Published in print: 1998-09-24

This chapter discusses the final observations made about the impact of international law on Japanese law. Conclusions are drawn with respect to the impact of international law on Japanese law and the relationship between international law and Japanese law. Japanese courts are reluctant to deal with international law because of their unfamiliarity with this new branch of law, and this unfamiliarity and reluctance is illustrated in this chapter with many concrete examples. The chapter also discusses that Japanese law has significantly improved through the revision of laws, and even though direct invocation of international human rights law is unsuccessful before the courts, the laws are often eventually amended in the political process. It is also shown that international human rights adjudication has been less effective as a legal weapon for winning cases in the courts than it has a political means of giving legitimacy to movements to change Japanese laws.

This chapter first examines how partnerships are made in Japan. The methods for choosing companions are often awkward and dangerous, and, at least in the vision set forth by courts, many people ...
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This chapter first examines how partnerships are made in Japan. The methods for choosing companions are often awkward and dangerous, and, at least in the vision set forth by courts, many people making those choices seem to disregard love, intimacy, and emotional compatibility in favor of more calculated matching criteria. The discussion then turns to marriages. While loveless marriages happen everywhere, in Japanese court opinions, loveless marriage often is an expectation—not sad, and certainly not a tragedy. Japanese judges sometimes hold up love as an ideal in some mythical perfect state of marital bliss, but they do not view it as a necessary component of actual marriages. Given the conception of love as an uncontrollable, disturbing, and confusing emotion, the separation of love and marriage seems perversely necessary and imminently practical, for marriage seems unlikely to survive long-term turmoil.Less

Coupling

Mark D. West

Published in print: 2011-03-03

This chapter first examines how partnerships are made in Japan. The methods for choosing companions are often awkward and dangerous, and, at least in the vision set forth by courts, many people making those choices seem to disregard love, intimacy, and emotional compatibility in favor of more calculated matching criteria. The discussion then turns to marriages. While loveless marriages happen everywhere, in Japanese court opinions, loveless marriage often is an expectation—not sad, and certainly not a tragedy. Japanese judges sometimes hold up love as an ideal in some mythical perfect state of marital bliss, but they do not view it as a necessary component of actual marriages. Given the conception of love as an uncontrollable, disturbing, and confusing emotion, the separation of love and marriage seems perversely necessary and imminently practical, for marriage seems unlikely to survive long-term turmoil.

This chapter explores three areas in which Japanese courts rule and comment on commodified sex. The first two are commercial: prostitution and other kinds of sex-for-money transactions, and ...
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This chapter explores three areas in which Japanese courts rule and comment on commodified sex. The first two are commercial: prostitution and other kinds of sex-for-money transactions, and pornography. In these two areas, in contrast with the conservatism of private sex, a wide variety of sexual services are clearly legal. Courts generally enforce the law strictly, but their commentary is inconsistent: although they never approve of commercial sex, sometimes they are unexpectedly silent, sometimes they are critical, and sometimes they are ambiguous. The chapter then examines a middle ground between commercial and private, a set of cases in which courts find monetary value in private sex that, while not founded explicitly on love, has a similar emotional or “real” component. In all three areas, courts tacitly allow or actively enforce the commodification of sex and the emotions that may accompany it.Less

Commodified Sex

Mark D. West

Published in print: 2011-03-03

This chapter explores three areas in which Japanese courts rule and comment on commodified sex. The first two are commercial: prostitution and other kinds of sex-for-money transactions, and pornography. In these two areas, in contrast with the conservatism of private sex, a wide variety of sexual services are clearly legal. Courts generally enforce the law strictly, but their commentary is inconsistent: although they never approve of commercial sex, sometimes they are unexpectedly silent, sometimes they are critical, and sometimes they are ambiguous. The chapter then examines a middle ground between commercial and private, a set of cases in which courts find monetary value in private sex that, while not founded explicitly on love, has a similar emotional or “real” component. In all three areas, courts tacitly allow or actively enforce the commodification of sex and the emotions that may accompany it.

The impact international law has had on Japanese law has been substantial, especially in the field of human rights. The author of this volume, one of Japan's leading international lawyers, examines ...
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The impact international law has had on Japanese law has been substantial, especially in the field of human rights. The author of this volume, one of Japan's leading international lawyers, examines extensively the relationship between his country's domestic rules and regulations, and the numerous international treaties and conventions which it has ratified in recent years. Some changes were made to domestic laws in an attempt to make them conform with these international instruments, but individuals went to the courts to try to obtain further necessary modification. Such direct invocations of international law have met with little success, but the laws concerned are often amended at a later date, due to political pressure. The changes in domestic law that such amendments have wrought have improved the human rights situation in Japan, and have led to a growing interest in international law within that country. The author pays particular attention to the laws governing sexual equality, the legal status of aliens, and the treatment of mental health patients, amongst others. The book details the changes that international law has brought in these areas, despite the skepticism of the Japanese courts regarding the validity of international human rights law as a source of law.Less

International Law, Human Rights, and Japanese Law : The Impact of International Law on Japanese Law

Yuji Iwasawa

Published in print: 1998-09-24

The impact international law has had on Japanese law has been substantial, especially in the field of human rights. The author of this volume, one of Japan's leading international lawyers, examines extensively the relationship between his country's domestic rules and regulations, and the numerous international treaties and conventions which it has ratified in recent years. Some changes were made to domestic laws in an attempt to make them conform with these international instruments, but individuals went to the courts to try to obtain further necessary modification. Such direct invocations of international law have met with little success, but the laws concerned are often amended at a later date, due to political pressure. The changes in domestic law that such amendments have wrought have improved the human rights situation in Japan, and have led to a growing interest in international law within that country. The author pays particular attention to the laws governing sexual equality, the legal status of aliens, and the treatment of mental health patients, amongst others. The book details the changes that international law has brought in these areas, despite the skepticism of the Japanese courts regarding the validity of international human rights law as a source of law.

This chapter examines Japanese case-law on the legal personality, privileges, and immunities of international organizations. The scarcity of domestic judgments on these issues by the Japanese courts ...
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This chapter examines Japanese case-law on the legal personality, privileges, and immunities of international organizations. The scarcity of domestic judgments on these issues by the Japanese courts derives, seemingly, from the fact that the activities and operations by international organizations are neither very active nor visible in Japan compared with European countries, the United States, and other parts of the world. The discussions cover the legal personality and immunity of the United Nations University; the case on the immunity of the EC delegation in Tokyo; the judgments by Japanese courts on the immunity of international organizations.Less

Japan

Toshiya Ueki

Published in print: 2013-09-12

This chapter examines Japanese case-law on the legal personality, privileges, and immunities of international organizations. The scarcity of domestic judgments on these issues by the Japanese courts derives, seemingly, from the fact that the activities and operations by international organizations are neither very active nor visible in Japan compared with European countries, the United States, and other parts of the world. The discussions cover the legal personality and immunity of the United Nations University; the case on the immunity of the EC delegation in Tokyo; the judgments by Japanese courts on the immunity of international organizations.

This chapter looks into the practice of the Japanese courts not having grappled with the interpretive methodology specific to international law and its sparse and sporadic use of the VCLT rules. The ...
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This chapter looks into the practice of the Japanese courts not having grappled with the interpretive methodology specific to international law and its sparse and sporadic use of the VCLT rules. The receptivity to international law guaranteed by the Constitution is not leading to the courts’ active engagement in the interpretation of treaties, circumscribed by normative factors in the Japanese legal system as well as the large discretion given to the executive. The chapter then analyses the interpretive practice broadly comprising three patterns, none fully resorting to the VCLT canon in a discursive manner and yet showing some cases of missed opportunities. To the extent that the practice remains largely drawn on an approach common in the interpretation of the national law, it points to divergence rather than convergence. The contribution concludes by raising two possible avenues for deepening the process of a more discursive interpretive practice of treaties.Less

Gingerly Walking on the VCLT Frontier? : Reflections from a Survey on the Interpretive Approach of the Japanese Courts to Treaties

Yukiko Takashiba

Published in print: 2016-01-01

This chapter looks into the practice of the Japanese courts not having grappled with the interpretive methodology specific to international law and its sparse and sporadic use of the VCLT rules. The receptivity to international law guaranteed by the Constitution is not leading to the courts’ active engagement in the interpretation of treaties, circumscribed by normative factors in the Japanese legal system as well as the large discretion given to the executive. The chapter then analyses the interpretive practice broadly comprising three patterns, none fully resorting to the VCLT canon in a discursive manner and yet showing some cases of missed opportunities. To the extent that the practice remains largely drawn on an approach common in the interpretation of the national law, it points to divergence rather than convergence. The contribution concludes by raising two possible avenues for deepening the process of a more discursive interpretive practice of treaties.

This chapter introduces the cultural history of exile during the Nara and Heian periods in Japan. The chapter also provides a theoretical framework for the study of exile in Japanese court society. ...
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This chapter introduces the cultural history of exile during the Nara and Heian periods in Japan. The chapter also provides a theoretical framework for the study of exile in Japanese court society. In addition, the introduction explains specific themes underlying the entire book, including the vocabulary of exile, the topic of centers and peripheries, the nature of Japanese court society, and the idea of a Heian “imaginary.”Less

Introduction : The Moon of Exile

Jonathan Stockdale

Published in print: 2015-02-28

This chapter introduces the cultural history of exile during the Nara and Heian periods in Japan. The chapter also provides a theoretical framework for the study of exile in Japanese court society. In addition, the introduction explains specific themes underlying the entire book, including the vocabulary of exile, the topic of centers and peripheries, the nature of Japanese court society, and the idea of a Heian “imaginary.”

In 2002 a manga (comic book) was for the first time successfully charged with the crime of obscenity in the Japanese courts. This book traces how this case represents the most recent in a long line ...
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In 2002 a manga (comic book) was for the first time successfully charged with the crime of obscenity in the Japanese courts. This book traces how this case represents the most recent in a long line of sensational landmark obscenity trials that have dotted the history of postwar Japan. The objects of these trials range from a highbrow literary translation of Lady Chatterley’s Lover and modern adaptations and reprintings of Edo-period pornographic literary “classics” by authors such as Nagai Kafū to soft core and hard core pornographic films, including a collection of still photographs and the script from Ōshima Nagisa’s In the Realm of the Senses, as well as adult manga. At stake in each case was the establishment of a new hierarchy for law and culture, determining, in other words, to what extent the constitutional guarantee of free expression would extend to art, artist, and audience. The book draws on diverse sources, including trial transcripts and verdicts, literary and film theory, legal scholarship, and surrounding debates in artistic journals and the press. It demonstrates how legal arguments are enmeshed in a broader web of cultural forces. The book offers an original, interdisciplinary analysis that shows how art and law nurtured one another even as they clashed and demonstrates the dynamic relationship between culture and law, society and politics in postwar Japan.Less

The Art of Censorship in Postwar Japan

Kirsten Cather

Published in print: 2012-07-31

In 2002 a manga (comic book) was for the first time successfully charged with the crime of obscenity in the Japanese courts. This book traces how this case represents the most recent in a long line of sensational landmark obscenity trials that have dotted the history of postwar Japan. The objects of these trials range from a highbrow literary translation of Lady Chatterley’s Lover and modern adaptations and reprintings of Edo-period pornographic literary “classics” by authors such as Nagai Kafū to soft core and hard core pornographic films, including a collection of still photographs and the script from Ōshima Nagisa’s In the Realm of the Senses, as well as adult manga. At stake in each case was the establishment of a new hierarchy for law and culture, determining, in other words, to what extent the constitutional guarantee of free expression would extend to art, artist, and audience. The book draws on diverse sources, including trial transcripts and verdicts, literary and film theory, legal scholarship, and surrounding debates in artistic journals and the press. It demonstrates how legal arguments are enmeshed in a broader web of cultural forces. The book offers an original, interdisciplinary analysis that shows how art and law nurtured one another even as they clashed and demonstrates the dynamic relationship between culture and law, society and politics in postwar Japan.